Statutory Authority

Texas Parks and Wildlife Department Involvement in Water Issues

Property of the State

The property of the people of the state includes all wild animals, fur-bearing animals, wild birds, and wild fowl inside the borders of this state; all fish and other aquatic animal life contained in the freshwater rivers, creeks, and streams and in lakes or sloughs subject to overflow from rivers or other streams within the borders of this state; all the beds and bottoms and the products of the beds and bottoms of the public rivers, bayous, lagoons, creeks, lakes, bays, and inlets in this state and of that part of the Gulf of Mexico within the jurisdiction of this state.TP & W Code §1.011(a)-(c)

The property of the state includes water of the ordinary flow, underflow, and tides of every flowing river, natural stream, and lake, and of every bay or arm of the Gulf of Mexico, and the storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression, and watershed. Tex. Water Code §11.021 State Water.

General Authority

Texas Parks & Wildlife Department and Commission (TPWD):

• TPWD must regulate the taking and conservation of fish, oysters, shrimp, crabs, turtles, terrapins, mussels, lobsters, and all other kinds and forms of marine life, or sand, gravel, marl, mud shell, and all other kinds of shell in accordance with the authority vested in it by this code. TP & W Code §1.011(d) PROPERTY OF THE STATE.
• TPWD authorized to protect fish in public waters. TP & W Code §1.012 PUBLIC FRESH WATER.
• TPWD may acquire water or an interest in water. TP & W Code §13.002 Development and Acquisition of Outdoor Areas.
• TPWD has primary responsibility for protecting the state's fish and wildlife resources. Resource protection activities include investigating fish kills and seeking restoration for lost resources, providing recommendations for protecting fish and wildlife resources to local, state, and federal agencies that approve development projects, and providing recommendations to the TCEQ on scheduling of instream flows and freshwater inflows to Texas estuaries for the management of fish and wildlife resources. TP & W Code §12.0011 Resource Protection.

Texas Commission on Environmental Quality (TCEQ)

Except for certain specified activities, no person may appropriate, store, take or divert state water without first obtaining a permit from the TCEQ. Tex. Water Code §11.121 Permit Required.

Texas Water Development Board (TWDB)

TWDB to plan and develop water resources. Tex. Water Code §§16.001-16.624 Provisions Generally Applicable to Water Development.

TPWD Involvement in Water Permitting Process

Notice & Party Status

TCEQ must send TPWD a copy of all permit applications to store, take or divert water. TPWD must make recommendations to the TCEQ to protect fish and wildlife resources. TPWD may be a full party in any hearing on an application to store, take or divert water. TCEQ must consider information, evidence and testimony offered by TPWD. TP & W Code §12.024 Water Permit Responsibilities; Tex. Water Code §11.147(f) Effects of Permits on Bays and Estuaries and Instream Uses.

Considerations in Permitting Process

• In considering an application for a permit to store, take or divert water, the TCEQ must assess the effects of the permit on bays and estuaries. If the permit is issued within 200 miles of the coast, to the extent practicable when considering the bays and estuaries studies, the TCEQ must include conditions considered necessary to maintain beneficial inflows to any affected bay and estuary system. Tex. Water Code §11.147 (b) Effect of Permits on Bays and Estuaries and Instream Uses.
• In considering an application for a permit to store, take or divert water, TCEQ must consider the need for freshwater inflows to supply nutrients and modify salinity to preserve the sound environment of the bays and estuaries, using any available information, including the bay and estuary studies, and must consider the ecology and productivity of the affected bay and estuary system. Tex. Water Code §11.147 (c)(1), (2) Effect of Permits on Bays and Estuaries and Instream Uses.
• In considering an application for a permit to store, take or divert water, TCEQ must consider the effect on existing instream uses and water quality of the stream or river to which the application applies. Tex. Water Code §11.147(d) Effect of Permits on Bays and Estuaries and Instream Uses.
• In considering an application for a permit to store, take or divert water in excess of 5,000 acre feet per year, TCEQ must consider the effect on fish and wildlife habitats and may require reasonable actions to mitigate impact on habitats. Tex. Water Code§11.152 Effects of Permits on fish and Wildlife Habitats.
• Public parks, game preserves ,and recreation and pleasure are considered beneficial uses for which state waters may be appropriated, stored and diverted. Tex. Water Code §11.023(a)(7) Purposes for which Water may be Appropriated.
• Agriculture is considered a beneficial use for which state waters may be appropriated, stored and diverted. Tex. Water Code §11.023(a)(2) Purposes for which Water may be Appropriated. “Agriculture” is defined to include wildlife management. Tex. Water Code §11.002(12)(E) Definitions.

Consideration in Assessing Penalty

In determining the administrative penalty for unlawfully taking, diverting or appropriating state water, or for violating a permit condition, the TCEQ must consider the impact of the violation on the instream uses, water quality, fish and wildlife habitat, or beneficial freshwater inflows to bays and estuaries. Tex. Water Code §7.053 Factors to be Considered in Determination of Penalty Amount. Tex. Water Code 11.0842(c)(2) Administrative Penalty.

Notice of Emergency Orders

TPWD is entitled to notice of emergency order of TCEQ regarding emergency or temporary suspension of a permit condition relating to beneficial inflows to affected bays and estuaries and instream uses Tex. Water Code §5.506 Emergency Suspension of Permit Condition Relating to Beneficial Inflows to Affected Bays and Estuaries and Instream Uses, Tex. Water Code 11.148 Emergency Suspension of Permit Conditions

Bays & Estuaries

• TPWD is required to participate and provide assistance in estuary programs. Tex. Water Code §5.605 Emergency Suspencion of Permit Condition Relating to Beneficial Inflows to Affected Bays and Estuaries and Instream Uses.
• TPWD and TWDB have joint responsibility for establishing and maintaining a bay and estuary data collection and evaluation program and to complete studies by December 31, 1989. Tex. Water Code §16.058 Collection of Bays and Estuaries Data; Conduct of Studies.
• TPWD and TCEQ are required to review bay and estuary studies prepared by TPWD and TWDB to determine inflow conditions necessary for the bays and estuaries; TPWD, TCEQ and TWDB authorized to establish an advisory council for each principal bay and estuary. Tex. Water Code §11.1491 Evaluation of Bays and Estuaries Data.
• Five percent of the annual yield of water in any reservoir and associated works constructed with state financial participation within 200 river miles from the coast is appropriated to the TPWD for use to make releases to bays and estuaries and for instream uses; TCEQ must permit this water to TPWD. Tex. Water Code §15.3041 Reservations and Appropriation for Bays and Estuaries and Instream Uses. 16.1331 Reservations and Appropriation for Bays and Estuaries and Instream Uses.

Instream Flow

TPWD, TWDB and TCEQ have joint responsibility for establishing and maintaining an instream flow data collection and evaluation program. The priority studies are to be completed by December 31, 2010. Tex. Water Code §16.059 Collection of Instream Data; Conduct of Studies.

Water and Development Planning

• In studying, investigating, and surveying the occurrence, quantity, quality and availability of surface water and groundwater of the state, the TWDB must consider the advice of the TPWD in the following: determining suitable locations for future water facilities, including reservoir sites; making estimates of the cost of proposed irrigation works and the improvement of reservoir sites; examining and surveying reservoir sites; monitoring the effects of fresh water inflows upon the bays and estuaries of Texas; and, monitoring instream flows. After each major river basin Water Availability Model is completed, TCEQ must coordinate with TPWD to determine the potential impact of reusing municipal and industrial effluent on existing water rights, instream uses, and freshwater inflows to bays and estuaries. Tex. Water Code §16.012 Studies, Investigations, Surveys.
• TWDB must coordinate with TPWD in developing guidance principles for the state water plan and receive input from TPWD in reviewing and updating the guidance principles. Tex. Water Code §16.051 State Water Plan; Drought; Conservation; Development.
• TPWD representative to serve as ex official member of each regional water planning group. Tex. Water Code §16.053 Regional Water Plans.

Groundwater

• TCEQ and TWDB to develop a priority groundwater management area report and TCEQ must request a study from TPWD for purposes of preparing the report. The TPWD study must evaluate the potential effects of the designation of a priority groundwater management area on an area's natural resources, and must be completed and delivered to TCEQ on or before the 180th day following the date of the request. Tex. Water Code § 35.007 Identifying, Delineating and Designating Priority.
• For purposes of provisions regarding groundwater conservation districts, “agriculture” is defined to include wildlife management. Beneficial use is defined to include use for an agriculture purpose. Tex. Water Code §36.001 Definitions.

Drought Preparation

• A TPWD representative is to serve on the drought preparedness council. Tex. Water Code §16.055 Drought Response Plan.
• The drought preparedness council must prepare a comprehensive state drought preparedness plan for mitigating the effects of drought. The plan must include a mechanism to improve the timely and accurate assessment of drought impact on wildlife and the health of the natural resource base. Tex. Water Code §16.0551 State Drought Preparedness Plan.

TPWD Involvement in Water Quality Issues

Water Quality Monitoring and Standards

• River authorities must create basin wide steering committees with representatives from appropriate state agencies who shall develop assessments and reports on the water quality in each watershed and river basin in the state. Each river authority must submit summary reports of the water quality assessment of the authority's watershed to the TCEQ, TPWD and the State Soil and Water Conservation Board. (TPWD participates routinely as a member of the steering committees and as needed in related activities such as data collection, and training river authority staff.) Tex. Water Code §26.0135(b) Watershed Monitoring and Assessment of Water Quality.
• TCEQ must set water quality standards. In setting this standards, the TCEQ must develop standards based on all quality assured data obtained by the TCEQ, including the local watershed and river basin database which is to be composed of data obtained from river authorities, wastewater discharge permit holders, state and federal agencies and other relevant sources. (The TPWD plays a large role in periodic revisions of the standards, including formation of policy, and rule and guidance development.) Tex. Water Code §26.023 Water Quality Standards; Tex. Water Code §26.0135(c)(2) Watershed Monitoring and assessment of Water Quality.

Discharges and Discharge Permits

• TCEQ is authorized to issue permits for wastewater discharges. An exception is allowed for activities under the jurisdiction of TPWD. (In addition, TPWD regularly reviews and comments on wastewater discharge permits and related policy and guidance.) Tex. Water Code §26.121 Unauthorized Discharges Prohibited; see, also, Tex. Water Code §26.027 Commission May Issue Permits.
• TCEQ is to consult with TPWD and the Department of Agriculture in establishing permit conditions relating to suspended solids in a discharge permit for an aquaculture facility that is located within the coastal zone and engaged in shrimp production. The permit conditions are to be based on levels and measures adequate to prevent certain potential adverse responses in aquatic plants and organisms. Tex. Water Code §26.0345 Discharge from Aquaculture Facilities.
• TPWD is authorized to file a lawsuit in district court to enforce the provisions of the Water Code regarding unauthorized discharges to the extent that a violation affects aquatic life and wildlife. TPWD may seek injunctive relief and/or civil penalties, and recover damages. Tex. Water Code §7.109 Parks and Wildlife Department Jurisdiction, 26.129 Duty of Parks and Wildlife Department.

Miscellaneous

• A TPW Commissioner must be a member of the Texas Water Advisory Council. Tex. Water Code §9.002 Creation and Membership.
• The Texas Water Trust is established within the Texas Water Bank to hold water rights dedicated to environmental needs, including instream flows, water quality, fish and wildlife habitat, or bay and estuary inflows. TWDB must consult with TPWD and TCEQ to adopt rules for holding the rights. Rights placed in the trust must be reviewed and approved by the TCEQ, in consultation with TWDB and TPWD. Tex. Water Code §15.7031 Texas Water Trust.